Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
RECONSIDERATION DECISION
Before: Cezary Paluch, Adjudicator
File: 17-005974/AABS
Case Name: M.S. v. Desjardins General Insurance Group
Written Submissions by:
For the Applicant: Mariya Verkhovets, Counsel
For the Respondent: Kayley Richardson, Counsel
OVERVIEW
1This Request for Reconsideration was filed by the respondent insurer in this matter. It arises out of a decision from a written hearing in which the Tribunal found that the applicant, M.S., was entitled to all the treatment plans in dispute and an award.
2The respondent’s main argument is that Tribunal violated the rules of procedural fairness when it issued several faulty or defective summons, and this alleged error, led to inadequate or delayed disclosure that ultimately affected the decision.
3The respondent is seeking an order for a rehearing.
4In this Reconsideration, the Tribunal, on its own initiative, also reconsidered the Motion Decision dated March 16, 2018, issued prior to the decision from the written hearing.
5Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act,1 I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
6The respondent’s Request for Reconsideration is granted because the Tribunal violated rules of procedural fairness, made an error in fact which led to an error in law related to misleading evidence, and there is new evidence that could not have reasonably been obtained earlier that may have affected the result.
7The Tribunal also grants the reconsideration of the Motion Decision dated March 16, 2018 because the Tribunal improperly exercised its power by breaching its own procedural rules in issuing six summonses in a written type hearing.
8The six issued summons dated March 14, 2018 should not have been issued in this matter as this was a written hearing and no attendance of any witness was ever required. This error was never cured by the Tribunal and impacted the entire hearing process including denying the respondent an opportunity to make full submissions as certain documents, including those relevant to the issue of causation, were only received after the due dates for their submissions had passed and were never before the hearing adjudicator. Moreover, the “special award” was granted on erroneous information in log notes that applied to another claimant and not the applicant.
ANALYSIS
9There are four grounds for a Request for Reconsideration set out in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure (the “Rules”).2 Only one of these grounds is necessary; however, the respondent raises all four grounds.
10I have considered all of the submissions and only summarized what I found relevant to my determination below.
Procedural Background - Issuance of Summons
11On February 27, 2018, prior to the written hearing that was initially scheduled for March 19, 2018,3 the respondent brought a motion to address concerns with outstanding productions.4 On March 6, 2018, to address this motion, the Tribunal ordered third parties by summons to produce documents intended to be used at the written hearing.5 Following this direction, in the normal course, respondent’s counsel appropriately prepared the Summons to Witness forms and asked the Tribunal to have them issued in accordance with the order. This was completed on March 14, 2018. At some point after, the Summons were provided to the respondent and presumably served on the six witnesses.6
12I point out here that with the imminent hearing scheduled to proceed in just over six weeks on April 9, 2019, and with the respondent’s submissions due on March 26, 2018, this certainly was not a lot of time for the respondent to have all six Summons served and obtain and review the necessary information. It must have created a severe time constraint for both parties. As a related matter, as this was a written hearing, and noticeably there was no date for the witnesses to attend at, it appears that this void may also have put the witnesses at an unfair or impractical position in trying to comply with these summonses. Yet this is exactly what the Tribunal ordered in this matter even though it was a written hearing. I believe in error as I explain next.
Error of Law – Summons – Motion Order dated March 6, 2018
13From a procedural perspective, I read the Statutory Powers Procedure Act7 and the Tribunal Common Rules of Practice and Procedure as only allowing summons to witness be made available to parties when conducting an in-person hearing.
14This conclusion is grounded in subsection 12(1) SPPA that only allows a tribunal to require any person to give or produce evidence “at an oral or electronic hearing.” This section was cited by the motion adjudicator at the March 6, 2018 motion as the authority for issuing the noted summons forms. My reading of this provision is that written hearings are specifically excluded, and the Tribunal erred in relying on this section because this was a written hearing and not an oral or electronic hearing.8 Of note the parties did not correct the Tribunal in issuing this order.
15This is also consistent with the practicalities of conducting an oral hearing – which allows parties to come to a hearing room, in-person, on a specific date with everyone present including the hearing adjudicator to hear viva voce (oral rather than written) evidence as opposed to a written hearing where there is no opportunity to hear viva voce evidence. I also note that s. 1 of the SPPA defines an “oral hearing” as a hearing at which the parties or their representatives attend before the tribunal in person.
16There is further support for my finding that a summons to witness is not available to a party in a written hearing in Rule 8 of the Tribunal’s Rules that speaks to the steps be followed in the issuance of a summons. That is, Rule 8.3 provides that: “A party summonsing a person to attend before the Tribunal is required to pay that person the same fees or allowances as the person would be paid if attending before the Superior Court of Justice (Ontario).” It is clear from this language that the main purpose of a summons is to have a witness attend at a hearing and give evidence. This is also consistent with the language in Rule 8.2 that “the Request shall provide a brief explanation of the information the witness is expected to give at the hearing”. Perhaps even more telling is that the Summons form itself in bold letters at the top of page 2 instructs the person who has been served with the summons to “attend before the Licence Appeal Tribunal on Ontario at the hearing to be held at the following address.” Below this cautionary language, logically, follows a box for the start time and date of the hearing. This is important as it tells the person where and what time to attend at the Tribunal for the hearing.
17Here, my review of the issued Summons forms shows that there was no date included in any of them that the individual was to attend on. Notably, the date/time box was left blank, and on this point alone, the Summons was defective. Understandably this was because there was no in person hearing taking place in any event as everything was being conducted in writing. The address provided was “77 Wellesley St. Toronto” which is the Tribunal’s head office and not the address where in person hearings are normally held. Again, this was misleading and incorrect - although the address was immaterial as again there was no hearing taking place, but the missing information illustrates the resulting complications of issuing a summons for a written hearing.
18Perhaps even more problematic in this case, was that four9 of the six Summons were issued to groups or corporate parties (without naming a director or manager) and not individuals or persons. This was also not in accordance with Rule 8 which indicates summonsing “a person”. This is also inconsistent with the Summons to a Witness form that asks the requestor to fill in the first and last name of the witness. Looked another way, if a summons is served on a group, or an organization, how can anyone know at that institution who the person is that is being asked to attend at the hearing without actually proving a name of an individual. Presumably this also presents a challenge for the organization receiving such a general summons as they will be concerned how to properly comply with it as it will be viewed as a judicial order. Here, at a minimum (aside from the written hearing issue problem I have identified) the summonses should have not have been ordered and issued in the first place.
19In this case, again what led to these summonses being issued was a motion by the respondent to enforce productions requests from third parties. However, the Tribunal Rules are silent with respect to third party disclosure requests. As a result, the Tribunal’s practice has been to deal with most of these third-party requests by issuing a summons to the appropriate non-party requesting that they bring the relevant document to the hearing. Evidently, this is not a perfect solution, as it is preferable that any documents under the control of non-parties which are important to a fair resolution of the issues be produced before the hearing to avoid inevitable adjournments this has been the practice that has been adopted.10
20Even more problematic is to address third party productions in a written type hearing where the summons remedy is effectively negated as obviously there is no hearing event for the witness to attend to in-person and all of the submissions and evidence are filed with the Tribunal prior to the hearing date. But again, this is exactly what happened here when the Tribunal attempted to deal with the third-party requests for information by issuing summonses in a written type hearing format. In my view, the Tribunal improperly exercised its power by breaching its own procedure rules.
21I recognize that Rule 18.1 of the Tribunal’s Rules stipulates that upon a request of a party the Executive Chair (or delegate) may reconsider any decision of the Tribunal within 21 days of the date of the decision, and this reconsideration is a request to reconsider the decision of Adjudicator Purdy dated July 16, 2018. However, as explained above, the actual order issuing the summons was granted by the motion adjudicator Makhamra on March 6, 2018. No reconsideration of that motion order was ever brought by the respondent within the 21-day time period.
22I also note that on February 7, 2019, the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) were amended. Pursuant to the amended Rule 18.1, requests for reconsideration are now only be accepted on Tribunal decisions that finally dispose of an appeal (ie. not interim motion). Pursuant to Rule 18.5, this change applies if the request for reconsideration relates to an order issued on or after February 7, 2019. Therefore, as the Makhamra motion order in this matter was issued on March 6, 2018 (prior to February 7, 2019) the Rules at that time permitted reconsideration of that decision.
23More to the point, the respondent takes direct issue with this motion order and takes the position that it is inextricably linked with the errors in the subsequent Tribunal decision. Specifically, the respondent argues that the motion adjudicator should have granted the respondent’s request for authorization (see para. 23 of Reconsideration Submissions) and not the summons, and somehow this relieved the applicant of his disclosure obligations. It follows from a procedural perspective, that the proper remedy lay in a reconsideration of Adjudicator Makhamra’s decision not Adjudicator’s Purdy’s decision dealing with the substantive issues. As I explained above, the Rules at that time allowed for appeals of motion decisions so it seems nothing prevented the respondent from taking that action.
24However, it seems to me that in these circumstances, it would be unconscionable and unfair to simply overlook the patent unreasonableness of the March 6, 2018 order. Especially since that order was made ex parte without input from the applicant and was a direct result of the applicant not producing documents he was ordered to produce pursuant to prior Tribunal orders. I note that at para. 2 and 3 of the March 6, 2018, Order, Adjudicator Makhamra explained the challenges with production issues that the parties were having: “the applicant agreed to produce a number of records, or to provide evidence that he requested the records in compliance with previous Tribunal Orders. The applicant did not produce the records, instead provided copies of letters sent to third parties as evidence of compliance.”
25Rule 3.1 also requires that the Rules be “liberally interpreted and applied.” As well, Rule 18.1 also allows the Executive Chair on his or her own initiative to “reconsider any decision of the Tribunal.” In these circumstances, I am confident that the fundamental purposes underlying Rules 3.1 and 18.1 allows me to reconsider Adjudicator Makhamra Motion Decision dated March 6, 2018, even at this late stage, as that apparent error in compelling third parties by summons to produce documents was never cured by the Tribunal and impacted the balance of the proceedings. I also dispense with the 21-day timing requirement.
26Therefore, on my own initiative, I grant the reconsideration of the Tribunal Order dated March 6, 2018, pursuant to Rule 18.2(b) and for the reasons mentioned above find that the Tribunal made a significant error of law when it breached its own Rules and the SPPA in erroneously ordering the six summonses for hearing to be held in writing. Accordingly, those impugned summons are also quashed. I would request that the respondent’s counsel write to the six individuals who were served with the summons to advise them of this decision and I apologize for any inconvenience this may have caused them.
Procedural fairness - Summons
27Simply because the Tribunal issued the six summonses does not mean that there was procedural unfairness. The real issue that must be answered is whether the issuance of these summons had such a drastic impact on the evidence available, or lack of evidence, that it breached the respondent’s right to a fair hearing.
28I believe that it did because a review of the time period clearly demonstrates that the respondent was denied procedural fairness by not being able to obtain the relevant documents in time prior to the filing of the submissions. A review of the due dates for submissions coupled with when this additional evidence was received supports this finding.
29For instance, on March 6, 2018, the Tribunal ordered third parties by summons to produce documents. These summonses were signed or issued by the Tribunal about a week later on March 14, 2018. The respondent’s written submissions due in advance of the hearing were due on March 26, 2018.11 Therefore the respondent only had about 9 business days to serve the summons, obtain the information and prepare the submissions. Not surprisingly, they were not able to do so. It was only after the hearing that the respondent received x-ray films of applicant’s lumbar spine pre-dating and following the accident.
30It was not clear to me exactly when the x-ray films were received but I accept based on the dates when the summons were issued that they were well after the submissions were already submitted. The respondent relied on the summons as their way to obtain the third-party information and proceeded down this misguided path. This was not a minor or inconsequential mistake but went to the heart of the right of the respondent to present their case as the x-ray pre-dated the accident and was directly relevant to the issue of causation. Moreover, the x-ray films needed to be reviewed by a radiologist to opine on the issue of causation of the fracture – something again that appears not to have been done due to the lack of time. Again, showing the significant impact that the issuance of the summons had on the availability of this evidence.
31For these reasons, I find that the Tribunal did violate the rules of natural justice or procedural fairness as the respondent was not able to present their case fairly.
Misleading Evidence and Error of Law – Log Note Entries
32The respondent also submits that the applicant in his reply submissions made false and misleading evidence and the respondent did not have an opportunity to correct these misrepresentations prior to the Tribunal rendering its decision. Specifically, the respondent states that the adjudicator heard the following misleading evidence:
i. that the adjuster log notes of September 9, 2016 pertained to the applicant and that he had been assessed for attendant care needs and submitted a Form 1.
33Again, I agree with the respondent. Reconsideration is warranted in cases where an adjudicator has made a significant legal mistake based on a finding of fact that prevents a just outcome. This is one of those cases as I explain below.
34At para. 6, page 3 of the applicant’s reply (to the hearing) the applicant addressed this log note:
Additionally, adjuster’s log notes reveal that the respondent was well aware about the need for attendant care and the nature of the injuries (Tab 3) [at Tab 3 were included the log note entries].”
35Indeed, in recognizing the importance of this evidence, the Tribunal referred to the above log notes entries in its decision at para. 50, when it came to the following conclusion:
- In the adjuster’s log notes, an entry dated September 9, 2016 states “Form 1 completed and most of service needed is for safety reasons”. The log notes indicate that [the applicant] was approved for the maximum monthly amount of $3,000, “36k” for 2 years, of attendant care benefits, mainly for safety reasons. [the applicant] maintains that the respondent was aware of the nature of his injuries and the need for attendant care based on the log note entries. [emphasis mine]
36Based on this finding of fact (that the log notes refer to the applicant and he was approved for ACB’s), the Tribunal than proceeded to grant the ‘special award’ at paragraphs 51-55 of its Decision, when it concluded that the respondent did not meet its obligations under s. 14(2) and 25(1)4 to pay for the assessment of the attendant care explaining that although attendant care benefits were approved up to the maximum amount M.S. was not notified.
37Now the respondent clarifies in their Reconsideration Submissions that the log note entry of September 9, 2016, pertain to another insured person who was an occupant in the car during the accident and not the applicant. They further explain that applicant was issued a Quebec policy and the notes were translated from French to English and all notes arising from this accident were made under one claim and appeared to not have been separated when they were translated. In direct contrast, the applicant in his Response to the Reconsideration maintains “that note cannot pertain to another individual. However, if it does, it is only proof of the insurer acting in bad faith…”
38I am astounded that on a reconsideration counsel still can not agree amongst themselves as to who this note pertains to and this remains a factual issue in dispute. This is something that should have been clarified and conceded prior to the hearing so the hearing adjudicator was not misled and was easily able to understand the information especially given the complexities with the translation. Unfortunately, this is exactly what happened here. I also do not understand how applicant’s counsel, on the one hand, maintains that the note entry refers to the applicant, but at the same time also says they may not and cites privacy concerns. Either the applicant did not apply for ACB’s and thus was never approved, and this note pertains to someone else or he did and was approved for ACB’s up to the maximum amount.
39To resolve this issue, I must review the log note entries and related documentation.
40At Tab 3 attached to the reply were the adjusted log notes that the applicant referenced and were relied on by the hearing adjudicator. For example, the entries of September 9, 2016 and September 16, 2019, (which appear to be part in French) are crucial as they refer to the attendant care and the noted Form 1, as follows:
“AB pour TP [J.]”
“Form 1 completed and most of the services needed is for safety issue…”
“Rappport #2 / [J.”]
“Qualify for max $3k/month, $36L for 2 years, mainly for his safety.”
41My reading of these log notes is that they in fact refer to another person (there is reference to the name [“J.”]), who must have been another passenger in the applicant’s vehicle and not the applicant ([S.]). I also note that the log entries do refer to a second passenger being present in the accident. As well, filed medical reports confirm that there were three people in the car at the time of the accident.12 Perhaps even more telling, is that the applicant never submitted a Form 1 – An Assessment of Attendant Care Needs to outline his need for attendant care. This is the starting point and required form when an injured claimant applies for attendant care benefits in accordance with the s. 42(1) of the Schedule. Without this form, an insurer may, but is not required to, pay an expense incurred before it receives a properly completed Form 1.13
42I did not see a Form 1 anywhere in the record or the evidence included with the submissions. I note that the Application to the Tribunal submitted on September 6, 2017, does not list ACBs as an issue in dispute nor was this an issue at this hearing (save and except for the cost of the assessment). In other words, it is clear to me that the applicant never applied for ACB’s and correspondingly was never approved for this benefit or was paid this benefit.
43Therefore, the Tribunal made an error in fact in finding that the log notes refer to the applicant and he was approved for ACBs and was never informed of this benefit. I also find that the information provided by the applicant in reply including the log notes were misleading and this led the adjudicator to commit an error in fact regarding who the notes referred to which led to an error in law. That the respondent breached its obligation under section 14(2) of the Schedule that requires an insurer to pay for attendant care benefits when an injured person’s impairments from an accident is not a minor injury.
44Moreover, this error in fact was the primary basis for the Tribunal’s awarding the maximum amount of the ‘special award’ as it found that respondent withheld this information and denied this benefit against the findings of their own assessor.
45As such, I am satisfied that this misleading evidence clearly affected the Tribunals’ decision. I also find the adjudicator’s decision to grant an award was based on an error in fact which led to an error in law. The award is set aside.
New Evidence
46The respondent wished to submit the following additional evidence:
x-ray films of applicant’s lumbar spine pre-dating the accident;
records of Dr. Ullah and Dr. Ahluwalia that pre-date the accident; and
report of Dr. McBroom dated April 11, 2017.
47The respondent asserts that the above records were only made available after the hearing date as the providers were complying with the summons to witness and they would resolve and/or clarify the issue of causation as they show that the applicant had pre-existing back issues. In response, the applicant does not address this issue directly but submits that this is another delay tactic and that all of the new records are irrelevant in any event.
48I find that this was evidence not before the adjudicator that could have affected the result. I do not agree that the records are irrelevant or that this is a delay tactic. A key issue in this case was causation as was identified by the hearing adjudicator who concluded at para. 13 that M.S.’s compression fracture at L3 was a direct result of the accident. In support, the adjudicator relied on an x-ray taken while the applicant was in the emergency room on the day of the accident on July 9, 2016. The adjudicator also relied on the respondent’s assessment reports that concluded that the compression fracture was as a result of the accident.
49In my view, if there is an x-ray of the applicant’s lumbar spine (comparing the L3) that pre-dates the accident, that shows something else, it is relevant and may affect the result as this was clearly a significant issue for the Tribunal. However, a request for reconsideration is not an opportunity for a losing party to supplement the evidence once the deficiencies in their case has been exposed in a decision.
50Here, based on the well documented issues that the respondent was having with obtaining third party productions of the applicant’s medical information, including bringing a motion to comply with a prior production orders, I am satisfied that the respondent took the necessary steps to try to obtain this information but was legitimately unable to do so until it was too late and this is not just a mere opportunity to try to supplement their case.
51I have already explained above the difficulties the respondent was having with the summonses, related to the time constraints, that contributed to receiving the evidence after the hearing. In addition, the record shows that Dr. Broom’s report was provided to the respondent on May 8, 2018 (one day after the hearing was scheduled) and well passed when the respondent had filed their submissions. The respondent was prejudiced by not being able to rely on this medical information all of which appeared to be directly relevant to the issues in dispute.
52Rule 18(d) is intended to allow parties to provide and rely on evidence that they legitimately had no opportunity to obtain before the hearing. I find that this was the case here.
CONCLUSION
53For the reasons noted above, I grant the respondent’s Request for Reconsideration and order that this matter be re-determined.
54As explained above, the Tribunal committed a number of errors that, if corrected, would likely have resulted in a different outcome. However, that is not to say that this matter should have necessarily been decided differently. I leave that to the Tribunal.
55The Tribunal will schedule a case conference within 30 days of this decision to discuss the date/format of the new hearing, and any other related issue.
56The submissions and documents filed by the parties will not be part of the evidence at the new hearing.
57As it is the objective of the Tribunal in all cases, it is hoped that the parties can discuss and resolve these issues on their own especially given the prolonged history of this matter.
Released: August 16, 2019
Cezary Paluch, Adjudicator
Footnotes
- 2009, S.O. 2009, c. 33, Sched. 5.
- Namely, that the Tribunal: (1) acted outside its jurisdiction or violated the rules of natural justice or procedural fairness; (2) made a significant error of law or fact such that the Tribunal would likely have reached a different decision; (3) heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or (4) there is new evidence that could not have reasonably been obtained earlier and would have affected the result.
- This was adjourned to April 9, 2018, by the Order dated March 6, 2018.
- The Notice of Motion requested an order to compel the applicant to provide authorizations for outstanding productions and extension for written submissions to allow for request letters to be sent so as to deliver these productions.
- Paragraph 7 of Order of Adjudicator Makhamra dated March 6, 2018, orders summons to be addressed to the appropriate person.
- Summons to a Witness in the names of Mohinder Ahluwalia, Headwaters Health Centre ER, Maytona Ventures Ltd., William Osler Health, [I. U.], and Joseph Brant Hospital were issued by the Tribunal on March 14, 2018.
- Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, (“SPPA”).
- S. 1 of the SPPA each separately defines electronic, oral, and written hearings.
- Headwaters Health Centre ER, Maytona Ventrues Ltd., William Osler Health, and Joseph Brant Hospital.
- See ie. 18-005523 v Economical Mutual Insurance Company, 2018 CanLII 142937 (ON LAT)
- See para. 9 of Order dated March 6, 2019.
- See Psychiatry Report of Dr. Jetly dated March 28, 2017.
- Section 42(5) of the Schedule.